Same Sex Surrogacy in Florida

Adoption has been an option in Florida for the lesbian, gay, bisexual, transgendered, and questioning (LGBTQ) community since 2010, however, with the help of assisted reproductive technology (ART), the LGBTQ individuals can utilize ART to build a family with a genetic connection and place both parents on the child’s birth certificate. In Florida, the laws do not prohibit same sex couples or LGBTQ singles from using a surrogate or donated egg, sperm or embryos. All answers below are based on the assumption that the ruling allowing same sex marriage in Florida is not overturned by the U.S. Supreme Court.

How does the recognition of same sex marriage in Florida impact same sex spouses’ use of a surrogate?

When using a Florida surrogate, prior to marriage equality in Florida, there were additional steps required for same sex spouses to ensure parental rights for the biological and non-biological parent. Typically, the married couple, referred to now as the commissioning couple, had to obtain a consent to adopt from the surrogate, conduct a home study, and finalize parental rights under Florida’s adoption laws (Florida Statute Chapter 63) instead of Florida surrogacy laws (Florida Statute Chapter 742).

Following Florida’s recognition of same sex marriage in January 2015, same sex spouses can utilize Florida’s expedited and simplified process of affirming both parents as the legal parent of the child (child or children) born via a surrogate under Florida gestational surrogacy statute (Chapter 742). The gestational surrogacy statute eliminates the commissioning couple’s need to obtain a consent to adopt from the surrogate and avoids a home study. Florida’s surrogacy statute has specific requirements stating that the commissioning couple is required to enter into a detailed contract with the surrogate and her spouse/partner prior to any fertility treatments occurring. The surrogate and the commissioning couple must be at least 18 years old and the commissioning couple needs to be legally married.

Once the child via a surrogate is born, Florida’s surrogacy friendly procedures permit the commissioning couple, within 3 days after the birth of the child, to petition the court for a birth certificate with their names as the biological parents. This procedure eliminates the quandary in many states where in order to have the same sex parents’ names placed on the birth certificate, they are forced to adopt their own biological child. All hearings for surrogacy are in closed court and all papers and records are confidential.

How do LGBTQ singles use a surrogate in Florida?

Since surrogacy agreements under Florida’s surrogate statute (which allow for automatic parental rights for both parties in the commissioning couple) are currently limited to legally married couples, LGBTQ singles looking to use a surrogate cannot use Florida’s surrogacy statute but must proceed under Florida’s adoption laws. Under Florida law, such single parents using a surrogate is called an intended mother or intended father.

After selecting a surrogate, the single intended parent enters into a Pre-Planned Adoption Agreement with the surrogate and her spouse/partner (if any). This is an agreement by which a surrogate agrees to bear a child and relinquish parental rights to the intended parent. Florida law has mandatory requirements of what must be included in this type of agreement in order to effectively terminate the surrogate’s parental rights. Following the birth of the child, the intended parent files an adoption petition which terminates the parental rights of the surrogate and names the single parent as the legal parent of the child.

How do same sex, unmarried couples use a surrogate in Florida?

Since surrogacy agreements under Florida’s surrogate statute (which allow for automatic parental rights for both parties in the commissioning couple) are currently limited to legally married couples, same sex, unmarried couples looking to use a surrogate cannot use Florida’s surrogacy statute but must proceed under Florida’s adoption laws by entering into a Pre-Planned Adoption Agreement (referenced above).

Following the birth of the child with a surrogate, the process in which the non-biological partner obtains full parental rights to the child is through the process of Second Parent Adoption. When the child is born, only the biological parent in a same sex, unmarried couple will have parental rights to the child based on the Pre-Planned Adoption Agreement. Without utilizing a Second Parent Adoption, the non-biological parent in the same sex relationship has no legal rights to the child. The process for Second Parent Adoption, which can take approximately 2-3 months after filing the adoption petition, is similar to a standard adoption which involves filing an adoption petition, fingerprinting, background checks, a home study, obtaining the necessary consents to terminate parental rights, a search of the putative father registry to ensure nobody else claims parents’ rights to the child, a final adoption hearing and judgment, and ultimately placing both parents on the birth certificate.

Can a stepparent in a same sex marriage file a stepparent adoption of the spouse’s child and avoid filing a second parent adoption and home study?

Yes. In Florida, a stepparent adoption, previously limited to heterosexual, married couples, is a court proceeding allowing a stepparent to adopt his/her spouse’s child. The benefit of a stepparent adoption is that it avoids the extra expense of a home study, background check, fingerprinting, and multiple hearings to finalize an adoption; these items are required with a second parent adoption. Assuming nothing changes with the recognition of same sex marriage in Florida, a stepparent in a same sex, married couple, can adopt his/her spouse’s child through a more streamlined, inexpensive, and simplified stepparent adoption to become the legal parent of the child and place both parents’ on the child’s birth certificate. Without being recognized as the legal parent of a spouse’s child, the non-legal stepparent ultimately has no parental rights to the child and should the non-legal parent seek visitation of the child, a court would deny such visitation regardless of any prior agreements among the parties.

Can same sex spouses adopt a child jointly?

Yes. Because Florida recognizes same sex marriage, as long as a same sex couple is legally married, they can jointly adopt a child and have both parents’ placed on the child’s birth certificate at the same time instead of having to file a separate adoption proceeding for one of the spouses and then file another separate second parent adoption (i.e. Second Parent Adoption).

Can a same sex partner donate an egg or sperm to their partner, retain parental rights, and not be viewed as a donor?

In late 2013, the Florida Supreme Court held that the Florida egg, sperm and embryo donation statute (Florida Statute 742.14) was unconstitutional as it only allowed legally married, heterosexual couples to retain parental rights to a child born resulting from donated genetic material from one party to the other. The case involved a lesbian couple where one woman donated her egg (“biological mother”) to her partner (“birth mother”) to carry the child. Years after the birth of the child, the birth mother refused to give the biological mother parental rights and asserted the biological mother was only a donor of the egg with no parental rights. Under Florida’s donation statute, since they were not a legally married couple, when the biological mother donated her egg, she was viewed as a donor and did not retain rights to the resulting child. The case was argued to the Florida Supreme Court who determined that the donor statute was unconstitutional because it denied the biological mother the right to raise her child. The Florida Supreme Court held that, “we conclude that the state would be hard pressed to find a reason why a child would not be better off having two loving parents in her life, regardless of whether those parents are of the same sex, than she would by having only one parent.” This is encouraging news for same-sex couples wishing to utilize assisted reproductive technology to start families in Florida; they are no longer deemed just donors of genetic material if their intent is to retain parental rights to the resulting child. Regardless of the statute, a legal contract setting forth the parties intentions is strongly recommended when dealing with any reproductive technology law issues.

Will a sperm donor have parental rights in a “do it yourself” artificial insemination under Florida law?

Florida’s egg, sperm, and embryo donation statute (Florida Statute 742.14) provides that the donor of egg, sperm, or embryos has no parental rights to the resulting child (unless it is between a commissioning couple or a pre-planned adoption agreement is in place) when using assisted reproductive technology. Florida law defines “assisted reproductive technology”, in part, as procreative procedures which involve the “laboratory handling of human eggs or pre-embryos”. A 2002 Florida case found that a woman who wanted to get pregnant in the “usual and customary manner” with a friend for the use of his sperm could not relieve the man, who provided his sperm, of his parental rights despite an agreement providing otherwise that he was just a sperm donor because the child was created in the “usual and customary way”. The statute did not contemplate impregnation of woman with donated sperm by means of sex. In contrast, a 2013 Florida case involved a “do it yourself” artificial insemination using the biological mother’s egg by her same sex partner’s brother’s sperm. The court found the man, who donated his sperm, could be deemed a donor with no parental rights because although the procedure was not done in a laboratory, the court held “the statute does not require that the artificial insemination be performed in a clinical setting”. Regardless of the method of conception, it is imperative to consult with an attorney and have the proper contracts in place to specify the parties’ intentions regarding parental rights and the status of the donor of egg or sperm.

I regularly and proudly represent the LGBTQ community through their surrogacy journey. If you have any questions about the surrogacy process, please do not hesitate to call.

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All information on this website is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Marla Neufeld, Esq , nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this information without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.